On January 5, 2004, Petitioner Rasheen Hicks pled guilty to one count of possession of a firearm by a person convicted of a felony in violation of 18 U.S.C. § 922(g)(1). He is currently serving a 46-month prison sentence.

Presently before the Court is Hicks' petition pursuant to 28 U.S.C. § 2255 requesting that this Court set aside or correct the sentence imposed by this Court on May 4, 2004. Hicks challenges the imposition of his sentence on two grounds: (1) that he entered into a plea agreement, which inaccurately calculated his base offense level, resulting in a base offense level two points above what it otherwise should have been; and (2) that his counsel's assistance was ineffective for allowing him to enter into a plea agreement that incorrectly calculated his base offense level.

For the reasons that follow, the petition is denied.

BACKGROUND

The following facts are taken from the parties' submissions in connection with this motion and are uncontested except where noted.

Rasheen Hicks was apprehended on October 25, 2003, in Brooklyn, New York, while carrying a Taurus .40 caliber handgun and ammunition. Hicks had previously been convicted in New York State Supreme Court, Kings County, of criminal possession of a control substance in the third degree, a crime punishable by a term of imprisonment of more than one year. On January 5, 2004, Hicks pled guilty to one count of possession of a firearm by a person convicted of a felony in violation of 18 U.S.C. § 922(g)(1) before Magistrate Judge Levy. Although a plea agreement had been discussed, Hicks' guilty plea was not entered pursuant to any agreement.

On May 4, 2004, this Court sentenced Hicks to 46 months of imprisonment, pursuant to U.S. Sentencing Guidelines § 2K2.1, Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition.*fn1 Hicks' sentence recommendation was based on a category IV criminal history and a base offense level of 20, with a 2 level enhancement for obliterating the firearm's serial number and a 3 level reduction for acceptance of responsibility, resulting in a net offense level of 19.

On May 4, 2005, Hicks filed a pro se petition under § 2255 requesting that this Court vacate, set aside or correct his sentence. Hicks challenges his sentence on the two grounds stated above: (1) that his plea agreement incorrectly calculated his offense level and (2) that his counsel was ineffective for allowing him to plead guilty pursuant to that agreement.

Section 2255 provides a prisoner in federal custody a limited opportunity to challenge collaterally the legality of the sentence imposed on him by the Court. United States v. Addonizio, 442 U.S. 178, 185 (1979). The sentencing court is authorized by § 2255 to discharge or resentence a defendant if it concludes that "the sentence was imposed in violation of the Constitution . . . was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." § 2255; Addonizio, 442 U.S. at 185. In a § 2255 proceeding, the petitioner bears the burden of proving by a preponderance of the evidence that his sentence was imposed unlawfully. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).

Base Offense Level

Hicks first argues that his sentence is excessive because he was assigned a base offense level of 22 in error. Hicks maintains that his base offense level should have been 20 because the offense he admitted to committing is described by § 2K2.1(a)(4)(A)*fn2 of the Sentencing Guidelines, not by §*fn3 2K2.1(a)(3), which would have resulted in a net offense level of 17 after the 3 level reduction for acceptance of responsibility. Thus, Hicks argues that his sentence should be reduced because he was sentenced based on the improper offense level.*fn4

The transcript of the pleading makes it clear that no plea agreement was ever reached between the government and Hicks. Both the attorney for the United States and defense counsel denied the existence of a plea agreement when asked by Judge Levy whether Hicks' decision to plead guilty was subject to any cooperation agreement. (Pleading Transcript at 9.) Hicks simply pled guilty to the charges in the indictment.*fn5

In all events, the offense level of 22 that was assigned to Hicks was not in error. As Hicks correctly points out, the offense he pled guilty to that described in § 2K2.1(a)(4), which assigns a base offense level of 20 to individuals who are in possession of a firearm following a felony conviction for a controlled substance offense. The Presentence Report indicates that the firearm found in Hicks' possession had its serial number obliterated. (PSR at 4.) Under § 2K2.1(b)(4), an individual's offense level is increased by 2 levels when a firearm's serial number is altered or obliterated. Thus, Hicks' net offense level of 19 was calculated by taking the base offense level of 20 pursuant to § 2K2.1(a)(4)(A), adding 2 levels for tampering with the gun's serial number pursuant to § 2k2.1(b)(4), and finally subtracting 3 levels for acceptance of responsibility pursuant to § 3E1.1. Based on Hicks' criminal history category of IV, the Sentencing Guidelines recommended a term of imprisonment between 46 and 57 months. I sentenced Hicks to a 46 month term of imprisonment. (Sentencing Transcript at 12.)

Because his offense level was correctly calculated, Hicks' first argument fails.

Ineffective Assistance of Counsel

Hicks also argues that his imprisonment is in violation of his Sixth Amendment right to a fair trial because he lacked effective assistance of counsel. Hicks believes that his counsel was ineffective for allowing him to accept a plea agreement that overstated his base offense level, for failing to bring to the sentencing court's attention that the offense level was incorrect, and for failing to appeal the imposition of sentence based on an erroneous base offense level.

A defendant who alleges a violation of his Sixth Amendment rights due to ineffective assistance of counsel must demonstrate that (1) counsel's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment," and (2) that counsel's deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must identify counsel's acts or omissions that the defendant believes were not the result of "reasonable professional judgment." Id. at 690. In making the objective determination of whether counsel's assistance was professionally competent, courts adopt a strong presumption that "counsel's conduct falls within the wide range of professional assistance." Id. at 689. Moreover, it is not enough that counsel simply makes a professionally unreasonable error, the error must also prejudice the defendant by creating a "reasonable probability" that, but for counsel's unprofessional conduct, the result would have been different. Id. at 694.

Applying the Strickland standard to the instant case, I find that Hicks has not demonstrated that his counsel was ineffective. As I have already determined, there was no plea agreement between Hicks and the Government. Therefore, there is no basis for Hicks to claim that his counsel was ineffective for allowing him to enter into a plea agreement that inaccurately calculated his base offense level. Furthermore, since Hicks' net offense level of 19 was accurately calculated, there was nothing for his counsel, Mr. Schneider, to bring to the court's attention, nor was there any grounds for appeal on the basis of an incorrect offense level.*fn6

Furthermore, during sentencing Mr. Schneider argued for a reduction in Hicks' criminal history category, which would have had the effect of reducing Hicks' Sentencing Guidelines' recommended sentence and requested that this Court sentence Hicks at the low end of the applicable range.

Accordingly, I find that Mr. Schneider's presentation to this Court fell well within the range of professionally reasonable conduct and therefore did not amount to ineffective assistance.

CONCLUSION

For the reasons set forth above, Rasheen Hicks' § 2255 petition is denied. Petitioner is denied a certificate of appealability because he has not made "a substantial showing of the denial of a constitutional right." Reyes v. Keane, 90 F.3d 676, 680 (2d Cir. 1996).

The Clerk is directed to transmit a copy of the within to all parties.

SO ORDERED.

Charles P. Sifton (electronically signed) United States District Judge

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